Global Discoveries v. County of Madera CA5

Filed 6/22/26 Global Discoveries v. County of Madera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GLOBAL DISCOVERIES, LTD.,

F089741

Plaintiff and Appellant,

(Super. Ct. No. MCV084356)

v.

COUNTY OF MADERA et al., OPINION

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Madera County. Michael J.

Jurkovich, Judge.

Downey Brand, Anthony L. Vignolo, Christopher M. Kolkey and Tyler J. Horn

for Plaintiff and Appellant.

Lozano Smith, Regina A. Garza and Cyril H. Yu for Defendants and Respondents.

-ooOoo-

Global Discoveries, Ltd. (Global) filed a petition for writ of mandate seeking to

set aside the denial of its claim for excess proceeds from a tax default sale. Respondents

County of Madera and its Treasurer-Tax Collector Tracy Kennedy (collectively, the

County) had denied the claim for failure to submit supporting documentation within a

year of the recordation of the deed from the tax sale. The trial court denied the petition,

finding that it was moot because the County paid the excess proceeds to another claimant

and Global did not seek injunctive relief to prevent the disbursement.

On appeal, Global contends the trial court erred in finding that the petition should

be viewed as one for traditional mandamus under Code of Civil Procedure section 10851

rather than for administrative mandamus under section 1094.5, and in determining that

the petition was moot. Global asks us to review the merits of the petition and grant the

petition. We do not decide which type of mandamus is appropriate in this case or reach

the issue of whether a writ should issue as we conclude that the petition is moot.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Revenue and Taxation Code Section 4675

“The Revenue and Taxation Code directs how counties receive and distribute

proceeds from a tax sale of real property.” (Hodges v. County of Placer (2019)

41 Cal.App.5th 537, 545 (Hodges).) “After depositing certain sale costs in the general

fund,” the proceeds of the sale are deposited in “ ‘the delinquent tax sale trust fund’ for

distribution. ([Rev. & Tax. Code,] § 3719).” (Ibid.) After distributing certain sums for

the county’s costs of publishing and recording the notice of sale, to redeem the property

from tax default, and to satisfy current taxes, assessments, and penalties, “[t]he county

retains any excess proceeds in the delinquent tax sale trust fund … to allow parties of

interest in the property to claim them.” (Ibid.)

Revenue and Taxation Code section 4675 establishes the procedure for parties of

interest in the property to make their claims. (Hodges, supra, 41 Cal.App.5th at p. 545.)

“Parties who had an interest in the sold property may file a claim for a share of the excess

proceeds up to one year following the recordation of the tax deed.” (Ibid.; Rev. & Tax.

1 Undesignated statutory references are to the Code of Civil Procedure.

2.

Code, § 4675, subd. (a)(1).)2 To be considered timely, the claim must be postmarked on

or before the one-year expiration date. (Rev. & Tax. Code, § 4675, subd. (a)(2).)

Revenue and Taxation Code section 4675, subdivisions (b) and (c) detail the

process by which a party of interest may assign their right to claim excess proceeds, and

the required disclosures and advisements to the party of interest to act on its behalf.

Revenue and Taxation Code section 4675, subdivision (d) states: “The claims shall

contain any information and proof deemed necessary by the board of supervisors to

establish the claimant’s rights to all or any portion of the excess proceeds.”

After the one-year period expires and “the excess proceeds have been claimed by

any party of interest as provided herein, the excess proceeds shall be distributed on order

of the board of supervisors to the parties of interest who have claimed the excess

proceeds in the order of priority” established by statute. (Rev. & Tax. Code, § 4675,

subd. (e)(1).) Proceeds are first distributed to any claimant who held a recorded lien prior

to recordation of the tax deed on the property at the time of the sale. After that, proceeds

are distributed to claimants “with title of record to all or any portion of the property prior

to the recordation of the tax deed.” (Id., § 4675, subd. (e)(1)(A) & (B).) If “a person

with title of record is deceased at the time of the distribution of the excess proceeds, the

heirs may submit an affidavit” pursuant to Probate Code section 13100 et seq., to support

their claim for excess proceeds. (Id., § 4675, subd. (f).) After meeting these claims, the

county may transfer any unclaimed excess process to its general fund. (Id., § 4674.)

“Any action or proceeding to review the decision of the board of supervisors … to accept

2 Revenue and Taxation Code section 4675, subdivision (a)(1) provides: “Any

party of interest in the property may file with the county a claim for the excess proceeds,

in proportion to that person’s interest held with others of equal priority in the property at

the time of sale, at any time prior to the expiration of one year following the recordation

of the tax collector’s deed to the purchaser.”

3.

or deny the claim shall be commenced within 90 days after the date of that decision of the

board of supervisors ….” (Id., § 4675, subd. (g).)

Finally, when the board of supervisors has been petitioned to rescind the tax sale

pursuant to Revenue and Taxation Code section 3731,3 any excess proceeds shall not be

distributed to the parties of interest until at least one year following the date the board of

supervisors determines the tax sale should not be rescinded, and only if the person who

petitioned the board of supervisors has not commenced a court proceeding pursuant to

Revenue and Taxation Code section 3725.4 If such a court proceeding has been

commenced, any excess proceeds shall not be distributed to the parties of interest until a

final court order is issued. (Rev. & Tax. Code, § 4675, subd. (e)(2)(B).)

The County’s Claims Policy

In 2019, the County’s Board of Supervisors (board) adopted the “County of

Madera Tax Sale Policy Regarding the Submission of Claims for Excess Proceeds” (the

claims policy), which became effective on July 1, 2019. The purpose of the claims policy

“is to clearly define the process and requirements for claims for excess proceeds filed by

parties of interest, as defined by … Revenue and Taxation Code section 4675, regarding a

property that has been sold by the Madera County Treasurer-Tax Collector’s Office at a

sale for tax-defaulted property.” The claims policy states that pursuant to Revenue and

Taxation Code section 4675.1, “the Madera County Treasurer-Tax Collector is authorized

to establish the information and proof deemed necessary to satisfactorily establish a

3 Revenue and Taxation Code section 3731 sets forth the procedure for rescinding

the tax sale of property.

4 Revenue and Taxation Code section 3725, subdivision (a), provides that “[a]

proceeding based on alleged invalidity or irregularity of” a sale of tax-defaulted real

property “can only be commenced in a court if both of the following are satisfied:”

(1) the board of supervisors has been petitioned “pursuant to Section 3731 within

one year of the date of the execution of the tax collector’s deed”; and (2) “[t]he

proceeding is commenced within one year of the date the board of supervisors determines

that a tax deed sold under this part should not be rescinded pursuant to Section 3731.”

4.

claimant’s right to all or any portion of excess proceeds for those cases covered by this

policy.”

The claims policy states that Revenue and Taxation Code section 4675,

subdivision (d), “provides that any claim for excess proceeds shall contain all information

and proof deemed necessary by the Madera County Treasurer-Tax Collector and has

determined that the information provided and proof required is on the claim form and has

supporting documentation in order to establish a claimant’s rights to all or any portion of

excess proceeds.” A claimant must use the “Excess Proceeds Claim Form” developed by

the County’s Treasurer-Tax Collector’s office (the claim form), the “[f]ailure to provide

any information required” on the claim form “will result in denial of the claim,” and the

claim form must contain the amount or percentage of claim from available gross excess

proceeds as of the sale date, as well as the claimant’s filing status, name, address, and

telephone number.

The claims policy requires an individual claimant to “file his or her own claim,

unless he or she has chosen to assign his or her rights to another party.” The claims

policy emphasizes that: “An individual has the right to file a claim for an excess

proceeds on his or her own behalf directly with the county.” The claims policy

provides that “[u]nder no circumstances shall any claimant be given additional time to

file” a valid claim form beyond the one-year filing deadline. “It is the claimant’s

responsibility to submit a complete claim, including all necessary supporting

documentation by the close of business on the final date to file a claim for excess

proceeds.”

The claims policy lists documentation that is recommended to prove a claim for

excess proceeds, which must be submitted with the claim form, verified under penalty of

perjury, and notarized. The claims policy emphasizes that the County’s “Treasurer-Tax

Collector’s office is not responsible for informing the claimant of missing

attachments or incomplete claims.” A qualified heir of a person with title of record

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“must submit all documentation required to prove his or her legal standing as an heir” to

that person. The documentation includes a notarized probate affidavit, verified under

penalty of perjury and executed by all claimants pursuant to Probate Code

sections 13100–13116, and the last will and testament, if applicable. An assignee of a

party in interest must submit all proof required of any qualified claimant, as well as a

notarized affidavit verified under penalty of perjury and executed by all parties to the

assignment attesting that specified disclosures were made to the assignor.

The section entitled “CLAIM REVIEW” states that, pursuant to Revenue and

Taxation Code section 4675, “claims will be processed after one (1) year has passed from

the date of the recording of the deed to the purchaser,” and to receive board

consideration, “completed claims must be received on or before the close of business on

the final date of expiration of one (1) year following the date of the recording of the deed

to the purchaser.” If the claim is denied, the claimant will receive a letter from the

County’s Treasurer-Tax Collector. “If more than one claimant files for excess tax sale

proceeds from a sale within the filing period” and the County’s Treasurer-Tax Collector

“is unable to determine whether all or any of the claimants are parties of interest,” the

Treasurer-Tax Collector “may refer the matter to their County Counsel, which may delay

the approval and disbursement of claims.”

“After reviewing the claims and after the filing deadline,” the Treasurer-Tax

Collector “shall report to the Board of Supervisors the number of total valid claims and

disbursement amounts for approval.” The claims policy contains a disputed claims

procedure, which provides: “Following a period of at least 90 days after the notice has

been given to each claimant and in the event that no claimant files an action with the

Board of Supervisors, the Madera County Treasurer-Tax Collector may request that

County Counsel initiates an action in interpleader, naming as defendants all claimants

who have timely filed a claim. During the pendency of any proceeding taken pursuant to

these subsections, the Madera County Treasurer-Tax Collector shall retain all excess tax

6.

sale proceeds on deposit.” The County’s Auditor-Controller is required to “keep a proper

record of each claim paid under the provisions of this policy and shall be notified by the

Madera County Treasurer-Tax Collector of any litigation instituted concerning any claim

made or paid under California Revenue and Taxation Code section 4675. [¶] Proceeds

will be disbursed after the 90 day disputed claim period upon order of the Board of

Supervisors, in proper proportion, according to priority according to … Revenue and

Taxation Code [section] 4675(e).”

The instructions for filing a claim for tax sale excess proceeds explain, as stated in

the claims policy and as pertinent here, that excess proceeds will be distributed first to

lienholders of record, and then to any person with record title. The instructions provide

that if the person with record title is deceased, the heirs may submit an affidavit pursuant

to Probate Code section 13100 et seq., to support their claim, and a party of interest may

assign his or her right to a third party who may claim the excess proceeds. The

instructions state that heirs to a person with record title must submit: (1) copies or an

original of recorded documents, such as a deed, death certificate, or court order,

supporting their claim; (2) a notarized verification that the claimant is the person named

in the document where title was acquired and photo proof of identity; (3) supporting

documentation such as utility payments, property improvement/repair receipts and other

types of documents to prove the claim; and (4) a properly completed affidavit and a

notarized verification of proof of identity. The instructions state that after the board’s

review, the claim will either be approved or denied, and the tax collector will notify the

claimant of the action taken by the board. If the claim is approved, the auditor-controller

will issue a county warrant in payment after 90 days.

The claim form asks the claimant to specify the category of claimant and to list the

claimant’s name, address, email, social security number, driver license number, and

phone number. The claim form contains a certification of the claimant, which is signed

under penalty of perjury and states, among other things: “Documentation that supports

7.

my claim is enclosed. I understand that this claim form[] must be submitted by the close

of business within one year of the tax deed recording date listed above and that claims

submitted more than one year after this date will not be accepted per state law.”5

The County Receives Competing Claims for Excess Proceeds

In May 2019, the County sold a property located on 13th Street in Chowchilla (the

property) in a tax sale which resulted in $85,426.98 in excess proceeds. Loss and Betty

Dillard were the last assessees of the property. The tax deed for the sale was recorded on

June 10, 2019.

On January 2, 2020, the County received completed claim forms from Betty’s

sons, Ralph Hunt and Aaron Hunt, apparently without any supporting documents. On

April 22, 2020, the County received a completed claim form from Crystal Pierini in

which she asserted she was the property owner’s daughter. Pierini submitted the

following supporting documents: (1) affidavits for collection of Loss’s and Betty’s

personal property under Probate Code sections 13100 through 13106, in which Pierini

5 The County revised the claim form, claim instructions, and claims policy in 2021.

A statement was added to the claim form which advises that if the claim is denied, “you

are aware that you can no longer submit missing documentation as the one (1) year

expiration deadline has passed.” Statements were added to the claim instructions that

claims cannot be reviewed until after the one-year expiration deadline has passed,

“[a]dditional supporting documentation CANNOT be submitted after the one (1) year

expiration deadline,” and the “Treasurer-Tax Collector is not responsible for informing

the claimant of missing documentation or incomplete claims.”

While the 2021 claims policy continues to state that claimants will receive a letter

from the Treasurer-Tax Collector if a claim is denied, it adds that missing documents

“that caused the claim to be denied will not be accepted as the one (1) year

expiration deadline has now passed.” The 2021 claims policy also revised the disputed

claims procedure as follows: (1) before the board hearing date, if the claim was not

submitted to the board for a final decision, the claimant must submit their dispute to the

Tax Collector in writing 30 days from the date of the denial letter; and (2) after the board

hearing date, the claimant has 90 days to inform the Tax Collector in writing that the

claimant intends to file a civil suit in the superior court to overturn the board’s decision

and the suit must be filed before the end of the 90-day dispute period.

8.

declared she was their successor; (2) a copy of her driver’s license; (3) copies of Loss’s

and Betty’s death certificates; (4) a copy of a recorded affidavit by surviving spouse

succeeding to title to community property, which Loss recorded on June 26, 2018; and

(5) an authorization that Pierini signed.

On June 2, 2020, Ralph Hunt emailed his military paperwork in support of his

claim to the County at an email address for the county tax collector. The paperwork

included: (1) a Department of Defense, National Agency Check Request, which

identified Betty Lou Goodwin as his mother and the property as her address, which also

listed the property as Ralph’s address from June 1976 to the present; (2) a Servicemen’s

Group Life Insurance Election, which Ralph signed on November 28, 1980, designating

Betty L. Dillard as the beneficiary and listing the property as her address; and (3) an

untitled document related to Ralph’s discharge, which Ralph signed, included his date of

birth, and listed the property as his mailing address after his separation from service.

On June 3, 2020, the Treasurer-Tax Collector’s Office forwarded Ralph’s email to

the “TaxDistroGroup” and stated that if anyone was helping Ralph, his email was for

them. On June 10, 2020, Ralph emailed the County stating he ordered a copy of his birth

certificate digitally, but it could take 20 to 30 days to be delivered because of the

COVID-19 pandemic.

On June 10, 2020, the County received from Global a document entitled “CLAIM

SUMMARY” dated June 8, 2020, along with supporting documentation, which advised

that Global was making a claim to the excess proceeds based on an assignment of rights

signed by Michelle Ellen Green. The document listed 11 documents in support of its

claim. One attached document was an unsigned “EXPLANATION OF EVENTS,”

which stated the following: (1) Loss and Betty were the record owners of the property

pursuant to a grant deed (which was attached); (2) Betty passed away on October 31,

2014, leaving Loss as the surviving joint tenant; (3) Loss passed away on September 1,

2018, apparently intestate and without his estate being probated; (4) Loss had one

9.

biological child, Danny R. Dillard, who never married and had no biological children and

who predeceased his father on November 15, 1997, with a certificate of death to follow;

and (5) Loss was survived by one sibling, Michelle Green, who is entitled to collect

100 percent of the excess proceeds.

In an attached “Affidavit for Collection of Personal Property” under Probate Code

section 13100, Green attested to the following: (1) Loss died on September 1, 2018, at

least 40 days had elapsed since his death, and no proceeding had been conducted in

California for the administration of his estate; (2) the current gross fair market value of

Loss’s real and personal property in California did not exceed $150,000, and there was no

real property in the estate; (3) the excess proceeds from the tax-defaulted property sold at

public auction on May 18, 2019, was approximately $85,576.98; (4) Green is successor

of the decedent and to the decedent’s interest in the property as defined in Probate Code

section 13006; (5) no other person has a superior right to the decedent’s interest in the

property; and (6) Green requests that the described property be paid, delivered, or

transferred to her.

In an attached affidavit, Green declared: (1) Loss and Betty are the same people

listed in the grant deed; and (2) she could not provide tax bills, title insurance policies,

utility bills, or other supporting documentation to reference the property, as she had not

resided in Chowchilla for over 24 years. Also attached was an assignment of right to

collect excess proceeds, in which Green assigned her right, title, and interest to collect the

excess proceeds to Global. Global submitted the County’s official claim form, in which

it asserted it was the assignee of a party of interest. Finally, a copy of Green’s driver’s

license was attached.

On June 26, 2020, the County issued denial letters to all claimants. The letter to

Global stated: “Claimant has failed to submit a complete claim as per instructions in a

timely manner.” The letters to Ralph, Aaron, and Pierini stated: “Claimant has failed to

submit required documentation as per instructions.”

10.

On June 29, 2020, the County received a letter from Global dated June 25, 2020,

with the following additional supporting documentation: (1) death certificates for Loss

and Betty; (2) birth certificates for “Lows Kirk Dillard, Jr.” and Green; and (3) a death

certificate for Danny Ray Dillard.

The Board’s Approval of Ralph Hunt’s Claim

The Treasurer-Tax Collector Department submitted an agenda item for the

August 4, 2020 board meeting recommending that it consider adopting a resolution

authorizing the distribution of excess proceeds of the tax sale to Ralph. The board

unanimously adopted the resolution at the August 4, 2020 board meeting. The resolution

recited that: (1) on May 20, 2019, the Treasurer-Tax Collector sold the property at public

auction for unpaid delinquent property taxes; (2) Ralph claimed the excess proceeds

derived from the sale; (3) there were claims filed against the property by lienholders or

other parties of interest in the property sold; and (4) the Treasurer-Tax Collector

reviewed the filed claims and determined Ralph’s claim to be valid. Accordingly, the

board resolved that the County’s Auditor-Controller draw a warrant in the amount of

$85,426.98 in Ralph’s favor and that all other claims for the excess proceeds which were

not approved by the resolution were rejected.

The following day, the County notified Ralph that his claim for excess proceeds

“has been approved after re-reviewing it,” and the funds would be sent out within

90 days.

On August 24, 2020, Global sent the County a letter with attachments addressing

the County’s summary denial of Green’s claim and the status of the claims by Perini,

Ralph, and Aaron. Global asserted the claim submitted on Green’s behalf was timely and

must be granted, while the claims of Perini, Ralph, and Aaron must be denied, and

explained why. Global asked the Office of the Treasurer-Tax Collector to issue a letter

approving Green’s claim or, if it would not do so, to explain why Green’s claim was

denied and advise to whom the Treasurer-Tax Collector intended to disburse the excess

11.

proceeds. Global requested a response by August 31, 2020. The following day, Global

sent Aaron Hunt’s birth certificate to the Office of the Treasurer-Tax Collector as a

supplement to its letter.6

On November 25, 2020, the County issued a check to Ralph for the $85,426.98 in

excess proceeds.

Global’s Petition for Writ of Mandate

Meanwhile, on November 4, 2020, Global filed a petition for writ of mandate

against the County of Madera and Tracy Kennedy Desmond as the County’s Treasurer-

Tax Collector.7 Global alleged that due to the tax sale of the property, the County

received and was holding $85,576.98 in excess proceeds.8 Global alleged it submitted a

timely claim for the excess proceeds and the County’s denial of its claim for failure to

submit a complete claim in a timely manner was untrue and invalid, was not supported by

any valid County policy regarding the submission of claims for excess proceeds, and was

inconsistent with the County’s practice of allowing claims to be supplemented after

timely submission of the original claim.

Global alleged that as Green’s assignee, it was entitled to receive the full share of

the excess proceeds. Global further alleged the denial of its claim was erroneous as a

matter of law, an abuse of discretion, denied Global its substantive and procedural due

process rights, denied it equal protection under the law, and was contrary to the County’s

6 The record does not show that the County ever responded to Global’s letter.

7 Ralph, Aaron, and Perini were all named as respondents in the petition, but by the

end of the proceedings, Ralph and Perini had been dismissed from the action, and Global

informed the trial court that it intended to dismiss Aaron as well.

8 Throughout these proceedings, Global alleged the amount of the excess proceeds it

sought to recover was $85,576.98, rather than the $85,426.98 that the County paid out. It

is not clear from the record how Global reached that amount, but it is not relevant to the

issues on appeal. Consequently, we will refer to the amount Global seeks to recover

simply as the “excess proceeds.”

12.

practice of handling claims for excess proceeds. Global asserted the County’s motivation

for the denial was animus towards Global, who was being treated differently than

similarly situated claimants.

The petition alleged that the validity of the rules or regulations the County used in

reaching the decision could be properly challenged through a petition for writ of mandate,

and it was challenging the validity of the County’s claim rules both in substance and as

applied to Global. Global sought a writ of mandate directing the County to set aside the

decision denying Global’s claim and pay the excess proceeds it was holding to Global,

and an order restraining the County from giving effect to the finding that Global is not

entitled to the excess proceeds until further court order or “to show cause why operation

of that finding should not be stayed pending the judgment in this proceeding.”

The First and Second Amended Petitions for Writ of Mandate

The County demurred to the petition on the ground it was untimely because

Revenue and Taxation Code section 4675 required the petition to be filed within 90 days

of the board’s August 4, 2020 decision. In response, Global filed a first amended petition

which alleged that it relied on the County’s representation that the deadline to file the

petition was November 4, 2020,9 and added a second cause of action for declaratory

relief, asking the court to declare that the County’s claim rules relating to the timing for

submitting supplemental information after an initial claim is made are invalid as a matter

of law, Global’s claim was timely, and Global is entitled to receive the full amount of its

claim.

9 Attached to the first amended petition was an email string dated July 20, 2020, that

showed: (1) Global emailed an employee in the Treasurer-Tax Collector’s Office and

asked if the employee could “confirm when the 90 day commences in regard to the above

referenced parcel so we can calendar the last day to file a writ?”; and (2) the employee

responded “[t]hat date would be 11/4/20.”

13.

The County demurred on the same basis as the first demurrer, arguing the action

was time-barred and equitable estoppel did not apply because Global was not entitled to

rely on the erroneous legal advice provided by a staff member of the Treasurer-Tax

Collector’s office. In opposition to the demurrer, Global asserted that sections 1094.5

and 1094.6 governed the matter since the validity of the County’s denial of Global’s

claim was properly challenged by a petition for writ of administrative mandate, and the

demurrer failed because the County did not comply with the notice requirements of either

Revenue and Taxation Code section 4675, subdivision (g) or section 1094.6,

subdivision (b). In reply, the County argued, among other things, that the first amended

petition did not allege there was an administrative hearing with a written decision or

supporting findings, or refer to any statute, charter, or rule that required a written decision

or findings.

Following oral argument at the demurrer hearing, the trial court adopted its

tentative ruling to sustain the demurrer with leave to amend as its order and gave Global

30 days to file an amended petition. In its ruling, the trial court found that the petition

was untimely because the petition was filed more than 92 days after August 4, 2020,

when the 90-day statute of limitations of Revenue and Taxation Code section 4675,

subdivision (g) began to run, and the first amended petition failed to plead equitable

estoppel.

Global filed a second amended petition, which added allegations that the County

was estopped from asserting that the petition was untimely. After the County filed an

answer to the petition, it filed a motion for judgment on the pleadings as to the

declaratory relief cause of action. The County argued that because the first cause of

action was for administrative mandamus pursuant to section 1094.5, Global could not

maintain the declaratory relief claim as declaratory relief is not an available alternative to

an administrative mandamus. Global opposed the motion, arguing the declaratory relief

cause of action was proper.

14.

In its tentative ruling to grant the motion, the trial court stated the motion raised

the issue of whether a proceeding for a writ of administrative mandate under

section 1094.5 is the exclusive remedy to review the administrative action in this case.

The trial court found the declaratory relief action “improperly requests relief that is

properly brought under the provisions of … section 1094.5,” as Global requested a

declaration regarding specific agency action. Following oral argument at the hearing on

the motion, the trial court adopted its tentative ruling and granted the motion with leave

to amend so that Global may address “the as-applied facial validity concerns the Court

raised in the tentative.”

The Third Amended Petition

Global filed a third amended petition for writ of mandate and declaratory relief.

On the writ of mandate claim, for the first time Global requested a writ directing the

County to set aside the decision denying its claim and to pay the excess proceeds to

Global “as damages.” On the declaratory relief claim, Global requested a declaration that

the County’s claim rules relating to the deadline for filing a supplemental claim for

excess tax sale proceeds were invalid as a matter of law and the County’s unequal and

selective enforcement of the same claim rules against Global violated equal protection.

The County again demurred to the declaratory relief cause of action, arguing that

such a claim is not allowed as an alternative to administrative mandamus. The County

asserted the application of an administrative deadline is a ministerial act unless a

statutory scheme provides discretion and the Revenue and Taxation Code did not provide

such discretion. The County further asserted that even if it had discretion to allow claims

to be supplemented after the one-year deadline, declaratory relief could not be used to

force it to exercise its administrative discretion in a particular manner. Global argued in

its opposition that the demurrer should be overruled because the third amended petition

alleged a justiciable controversy separate from the writ of mandate claim. In reply, the

County asserted Global’s claim that the County was required to allow supplementation of

15.

claims after the one-year deadline should be addressed by way of administrative

mandamus and the lawfulness of the claims policy could be decided in such a proceeding.

In its tentative ruling to sustain the demurrer, the trial court noted that the third

amended complaint essentially alleged: (1) the County’s claim rules were facially invalid

because they did not comply with Revenue and Taxation Code section 4675; and (2) the

County had a continuous and ongoing practice of applying the claim rules unequally

against Global. With respect to the second allegation, the court stated it would sustain

the demurrer because it improperly sought review of an as‑applied constitutional

challenge to an administrative decision subject to review through section 1094.5. As to

the allegation of facial invalidity, the court stated it would sustain the demurrer because

the complaint failed to plead a viable conflict between the claim rules and California law

and Global failed to cite any authority that required the County to accept supplemental

claims for excess proceeds of tax sales.

At the hearing on the demurrer, the trial court adopted its tentative ruling and

sustained the demurrer as to the declaratory relief cause of action without leave to amend,

as Global conceded there was no reasonable possibility to cure given the tentative ruling.

The Briefing on the Petition

In October 2023, after the County lodged the administrative record, Global filed

its opening brief in support of the petition.10 Global asserted it had satisfied the

requirements for writ relief, citing section 1085 as the applicable standard. Global argued

Revenue and Taxation Code section 4675 imposed a duty on the County to distribute the

excess proceeds according to the statute and conferred on Global the right to submit its

claim to the County as Green’s assignee. Global asserted the County’s denial of its claim

10 After the administrative record was filed, the trial court directed the County to file

a motion to seal because seven pages of the administrative record contained social

security numbers. The County subsequently did so and submitted an administrative

record which redacted all but the last four digits of the social security numbers.

16.

was substantively arbitrary, capricious, and lacking in evidentiary support, and violated

Global’s substantive and procedural due process rights.

The County filed an opposition in which it asserted that Global improperly cited

authorities pertaining to traditional mandate under section 1085, and the court had

previously ruled, and the law required, that a petition for writ of administrative

mandamus under section 1094.5 was the appropriate means to overturn the denial of a

claim for excess proceeds from a default tax sale, citing Carloss v. County of Alameda

(2015) 242 Cal.App.4th 116, 126 (Carloss). The County argued it correctly acted in a

manner required by law by reviewing all claims submitted within the one-year period

established by Revenue and Taxation Code section 4675, and it did not have a ministerial

duty to distribute the excess proceeds to Global. The County further argued Global did

not satisfy its burden of establishing its right to the excess proceeds; therefore, it did not

have any legal or equitable interest in the excess proceeds to support its due process

claims.

In its reply, Global asserted the County’s express acknowledgement that

section 1094.5 was the operative statute directly contravened the County’s argument that

Global was not entitled to a hearing or procedural protections. Global asserted

section 1094.5 was the operative statute, and noted the statute’s express terms, and

California case law, made clear that the statute only applied to a proceeding where a

hearing was required to be given and evidence required to be taken, both of which never

occurred. Global asserted it had an absolute right to some form of hearing, and the

County was required to issue findings from that hearing.

Globel’s Motion to Augment the Administrative Record

In December 2023, Global filed a motion to augment the administrative record to

add the following: (1) a July 2019 letter from the County to Global about an unrelated

claim for excess proceeds; (2) documents obtained through a public records request;

(3) the County’s documents on excess proceeds claims that became effective July 6,

17.

2021; and (4) the excess tax claim forms from three other California counties. Global

contended augmentation was proper because a hearing on its claim was statutorily

required and asserted it would have presented these documents had a hearing been

conducted.

In its opposition to the augmentation motion, the County argued that Global could

not meet the criteria for issuance of a writ of mandate under section 1094.5 because

Revenue and Taxation Code section 4675 did not require a hearing, and there was no

evidence Global ever requested or was entitled to one, or that the County denied Global a

hearing. The County further argued that Global could not use mandamus to compel an

administrative officer to exercise discretion in a particular way. Accordingly, the County

asserted, there was no legal basis to permit augmentation of the administrative record.

In its reply, Global contended “claims for excess proceeds are ‘adjudicatory’ in

nature and trigger review under” section 1094.5. Global argued it was entitled to some

form of hearing and the right to submit additional evidence before the County rendered

its decision to deny Global’s claim as untimely; therefore, it was entitled to augment the

administrative record with the documents it would have presented at that hearing. Global

asserted the County expressly conceded in its opposition to Global’s petition that section

1094.5 was the governing statute and the County was attempting to “flip-flop.”

The hearing on the motion to augment was held on March 22, 2024. On February

20, 2024, the trial court issued an order regarding issues for the parties to discuss at the

March 2024 hearing. The trial court explained that in reviewing the file and conducting

research, it had the following observations, as applicable here: (1) whether the action

was one for administrative mandamus under section 1094.5 or traditional mandamus

under section 1085, as the petition was unclear as to which was being sought, yet both

counsel have been treating the petition as one for administrative mandamus, and the law

appeared clear that administrative mandamus was the proper form of relief to set aside a

denial of a claim for tax sale proceeds even if an administrative hearing was required but

18.

not held; and (2) what is included in an administrative record when an administrative

hearing, where evidence was taken and a reasoned decision made, was not held.

At the March 22, 2024 hearing, the parties agreed section 1094.5 applied when a

hearing was required by law, but they disputed whether that requirement was satisfied in

this case. The County’s position was that the board’s decision was based on the records

received from all interested parties within the statutory requirements. Global’s counsel

argued that purely documentary proceedings can satisfy the hearing requirement if the

agency is required by law to accept and consider evidence from interested parties before

making its decision, but it did not matter here because “the bottom line is [Global] had no

opportunity to present those … documents in the administrative proceeding when the

County took the position that our claim was untimely.”

After further argument, the parties agreed that section 1094.5 applied and a

document review, rather than an evidentiary hearing, was sufficient to meet the hearing

requirement. The trial court posed a question to be addressed later, namely, whether the

court had the power to order the County to set aside the decision denying Global’s claim

and directing the County to pay the claim when another claimant was paid and Global did

not seek a preliminary injunction to stop the payment. The court continued the hearing

on the motion to augment to May 24, 2024.

At the continued hearing on the motion to augment, the trial court adopted its

tentative ruling to grant the motion as to all documents except the claim forms from other

counties. The court noted that counsel agreed that administrative mandamus was

appropriate in this case and an administrative hearing may be based solely on documents.

While counsel did not agree whether an evidentiary hearing was required, they agreed the

court did not need to confront that issue for the purpose of the augmentation motion. The

court set a schedule for supplemental briefing solely on the issues raised by the

augmented documents.

19.

The Supplemental Briefing

In its supplemental opposition, the County argued that section 1094.5 did not

confer a right to a hearing; rather, the hearing requirement was derived from the statute or

rule which authorized or required the hearing and neither the County’s claims policy nor

Revenue and Taxation Code section 4675 required a hearing on determinations of excess

proceeds. The County further argued that Global failed to establish any due process or

equal protection violation.

In its supplemental reply, Global asserted there was no dispute that a petition for

administrative mandamus was the appropriate means to overturn the denial of a claim for

excess proceeds. Global argued section 1094.5 provided the legal requirement of a

hearing and the County failed to conduct one. Global asserted the Treasurer-Tax

Collector decided to reject Global’s claim, as shown by the resolution the board adopted

approving Ralph’s claim, and the Treasurer-Tax Collector was biased against Global as

she commented in an August 7, 2019 internal email that she reviewed the excess

proceeds policy and she “really like[d] that you embolden[ed] the part that tells taxpayers

they can do their own claims … hopefully more of them will and cut global discoveries

out of a million or so dollars.”

The trial court issued an order posing additional questions for the parties to

address at the hearing on the petition, which primarily concerned the propriety of the case

being determined pursuant to section 1094.5. The court noted that since the filing of the

petition and its opening brief, Global’s “theory of the case has shifted greatly,” as Global

raised for the first time in its reply that its due process rights were violated because no

hearing was provided pursuant to section 1094.5 and merely filing a claim pursuant to the

statute dictates that a hearing was required. The trial court rejected Global’s claim that

section 1094.5 created the right to a hearing and noted “[t]he denial of [G]lobal’s

application was premised solely on a finding that the application itself was incomplete.”

20.

The trial court recognized the writ standard had been litigated throughout the

litigation, but Global “had changed its argument from what was presented at the outset of

this matter, to now allege that section 1094.5 was violated because it never received a

hearing pursuant to section 1094.5,” without citing any code or statute which required a

hearing. The trial court stated: “Overall, [Global]’s changed argument needs to be better

articulated to ensure this Court has the authority to issue the relief requested…. [T]he

parties should be prepared to address and articulate the argument whether this case can

properly be pursued pursuant to … section 1094.5. In particular, authority that indicates

a hearing is required even if an application to a government agency is denied or

disregarded as incomplete.”

The trial court also had questions regarding Global’s damages claim. The trial

court noted that when Global filed its initial petition it sought a writ directing the County

to pay the excess proceeds the County was holding, but Global did not file a request for

stay with the court and the County paid the excess proceeds to Ralph a few weeks after

Global filed the petition. Consequently, the trial court could no longer order the County

to release the disputed funds. The trial court further noted that it was not until the third

amended petition was filed in July 2022 that Global changed its claim for relief to a writ

mandating the County to pay Global the amount in controversy as damages without leave

of court. The trial court understood that a writ of mandate typically permitted a court to

issue an order which would allow a government agency to change a decision in order to

mitigate damages, but since the disputed funds were no longer in the County’s possession

and a stay was not sought, the issue appeared to be moot as to the court’s ability to order

the County to meaningfully change a disputed decision. Accordingly, the court asked the

parties to be prepared to address whether the court could order the recovery of damages

in an administrative mandamus action, or whether another joined cause of action was

required.

21.

Following the August 23, 2024 hearing on the petition, the trial court issued an

order setting a briefing schedule to address the issues the court raised. The trial court

stated that after the hearing, it noticed something else about Global’s paperwork that

presented “a further example of the shifting sand in this case as [Global]’s claim

continues to evolve.” The trial court noted that while Global’s claim for excess proceeds

stated that its assignor, Green, is Loss’s sibling, in its reply in support of the petition,

Global asserted that Loss is Green’s father. The court asked how it was to treat this

inconsistency and noted that under section 128.7, subdivision (b)(3), an attorney

presenting a pleading or petition to the court is certifying to the best of the attorney’s

knowledge, information and belief that the allegations and other factual contentions have

evidentiary support.

The parties filed the requested supplemental briefs. In its brief, Global

acknowledged that section 1094.5 only applies when a hearing is required by law and

asserted the parties, by expressly acknowledging section 1094.5 was the governing

statute, showed they “understood that Global was entitled to some form of notice and

opportunity to be heard.” Global asserted a hearing was held as the County determined

the evidence required for a claim for excess proceeds, received claims from competing

parties and, after reviewing those claims, determined the allegedly rightful claimant, but

that hearing did not satisfy the due process requirement of section 1094.5. Global further

asserted the County’s policies recognized an adjudicatory procedure was required.

Global argued that under the principles of judicial estoppel, the County was bound by the

statement in its opposition brief that administrative mandamus was the appropriate means

to overturn the denial of a claim for excess proceeds from a default tax sale.

With respect to whether its request for relief was moot, Global contended the

County was required to retain the excess proceeds and could not gain a windfall by

wrongfully distributing the money. Finally, Global agreed that Green is Loss’s sibling,

not his child, and asserted the statement that she was his child was a misunderstanding or

22.

typographical error, and regardless of her status, the analysis is the same as she is Loss’s

only blood relative and therefore possesses a superior claim.

In its brief, the County argued its determination of whether an application contains

sufficient information is reviewed through the exercise of traditional mandamus under

section 1085, as neither the county code, local regulations, nor the Revenue and Taxation

Code required a hearing, and a hearing was not required to satisfy due process. The

County further argued the petition to set aside the award of excess proceeds was moot

because the excess proceeds had been distributed to Ralph and Global failed to preserve

the status quo during the litigation. Finally, the County argued the claim for damages

was barred by the failure to timely present a claim to the County under the Government

Claims Act (Gov. Code, § 810 et seq.) (the Claims Act).11

The Trial Court Dismisses the Petition

On November 26, 2024, the trial court issued a tentative order to dismiss the

petition. The trial court found that the board never considered Global’s claim as it was

rejected on the grounds it was incomplete and untimely. The court further found that

Global failed to cite any statute or county policy that dictated a hearing was legally

required before a claim could be denied for failure to comply with the application

process, and no hearing was held because the County denied Global’s claim based solely

11 The parties each filed a reply to the other party’s supplemental brief, in which they

repeated their arguments. Global argued section 1094.5 governed this proceeding, and

the County’s disbursement of the excess proceeds did not impact Global’s petition. The

County argued the court’s review should be under section 1085, and the petition is moot.

The County asserted only a claim for damages was left, which undercut Global’s ability

to seek a writ as it had an adequate remedy at law, and while a petition for mandamus can

involve a claim for damages, Global was barred from bringing such a claim because they

failed to comply with the Claims Act. The County further argued judicial estoppel did

not apply because the issue had not been decided and the doctrine only applied to

statements of fact.

23.

on a finding that the claim was incomplete.12 The court therefore determined that

traditional mandamus applied.13

On the issue of mootness, the court noted: (1) Global’s original petition, filed on

November 4, 2020, sought a writ directing the County to pay the excess proceeds it was

holding, but no request for a stay was ever filed; (2) the County no longer possessed the

excess proceeds as it paid them to Ralph on November 25, 2020, therefore, the court

could no longer order the County to release those funds; and (3) it was not until the third

amended petition was filed that Global changed its claim for relief to a writ mandating

the County to pay Global “the amount in controversy as ‘damages.’ ” The court found

the issue appeared to be moot and the petition dismissed as moot because it was Global’s

burden to seek an order staying enforcement of the board’s order to disburse the excess

proceeds to Ralph, and the court could no longer order release of the disputed funds to

Global.

The hearing on the petition was held on December 23, 2024. Following argument

by counsel, the trial court adopted its tentative ruling and dismissed the petition. The

final order was issued on March 4, 2025. A judgment denying Global’s petition for writ

of mandamus was entered on April 22, 2025.

12 In a footnote, the trial court rejected Global’s argument that the County was

judicially estopped from contending that section 1094.5 did not apply, as Global did not

attempt to show the elements of estoppel were satisfied and judicial estoppel does not

apply to taking inconsistent legal positions. The court concluded that judicial estoppel

did not bar its consideration of the applicable writ standard.

13 In its decision, the trial court noted that Global misrepresented the holding of a

case since it appeared to cite from the “California Official Reports Summary” rather than

the appellate opinion. The trial court advised Global that it “should be prepared to

address authority that a reference in a reporter summary takes precedence over what is

stated in an appellate opinion, or why the levying of such an unqualified argument should

not be considered an attempt to deceive the Court,” citing section 128.7, subdivision (b).

24.

DISCUSSION

I. Administrative Versus Traditional Mandamus

We begin with Global’s contention that the trial court erroneously found

traditional mandamus rather than administrative mandamus was the appropriate vehicle

for challenging the County’s denial of Global’s claim. Global contends review should be

by administrative mandamus because Global’s claim involved the application of a

specific set of facts and a hearing on its claim was required by law. Global also contends

that the County is judicially estopped from arguing that administrative mandamus is

inapplicable because the trial court repeatedly accepted the County’s argument that the

petition sought a writ of administrative mandamus.

There are two types of review by mandate: ordinary mandate as provided in

section 1085 and administrative mandate as provided in section 1094.5. (Bunnett v.

Regents of University of California (1995) 35 Cal.App.4th 843, 848.) “The nature of the

administrative action or decision to be reviewed determines the applicable type of

mandate. [Citation.] In general, quasi-legislative acts are reviewed by ordinary mandate

and quasi-judicial acts are reviewed by administrative mandate.” (Ibid.)14

An ordinary mandate under section 1085 “is available where the petitioner has no

plain, speedy and adequate alternative remedy; the respondent has a clear, present and

usually ministerial duty to perform; and the petitioner has a clear, present and beneficial

right to performance.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752.) “[J]udicial

review via administrative mandate is available ‘only if the decision[] resulted from a

“proceeding in which by law: 1) a hearing is required to be given, 2) evidence is

required to be taken, and 3) discretion in the determination of facts is vested in the

14 “Generally speaking, a legislative action is the formulation of a rule to be applied

to all future cases, while an adjudicatory act involves the actual application of such a rule

to a specific set of existing facts.” (Strumsky v. San Diego County Employees Retirement

Assn. (1974) 11 Cal.3d 28, 35, fn. 2.)

25.

agency.” ’ ” (Bunnett, supra, 35 Cal.App.4th at p. 848; Conlan, at pp. 751–752.)

“Section 1094.5 expressly provides that it is the requirement of a hearing and taking of

evidence—not whether a hearing is actually held and evidence actually taken—that

triggers the availability for mandamus review. (Pomona College v. Superior Court

(1996) 45 Cal.App.4th 1716, 1729.) “Where a petition challenges an agency’s failure to

perform an act required by law rather than the conduct or result of an administrative

hearing, the remedy is by ordinary mandate pursuant to … section 1085, not by

administrative mandate pursuant to section 1094.5.” (Conlan, at p. 752.) “Where an

agency has failed to provide a hearing required by law, either a petition for administrative

mandate or a petition for ordinary mandate may be utilized to obtain the requisite

hearing.” (Mobley v. Los Angeles Unified School Dist. (2001) 90 Cal.App.4th 1221,

1245.)

“The choice of whether to challenge an agency action under traditional mandamus,

as opposed to administrative mandamus, is not always straightforward.” (Gann v. Acosta

(2022) 76 Cal.App.5th 347, 353.) While the decision to deny Global’s claim as untimely

involves the application of facts, namely, whether Global filed a timely claim that

established Green’s right to the excess proceeds, it does not appear that the County was

required by law to hold a hearing before making that determination. While Revenue and

Taxation Code section 4675 and the County’s claims policy require the review of claims

for excess proceeds, neither state a hearing is required when undertaking that review or

provide for an evidentiary hearing when a claim is denied. Rather the Treasurer-Tax

Collector reviews the claims, sends a letter to claimants whose claims are denied, and

reports the number of valid claims and disbursement amounts to the board for approval.

Although the Treasurer-Tax Collector may seek county counsel’s assistance when unable

to determine whether multiple claimants are parties of interest or which of multiple

claimants are entitled to the excess proceeds, the claims policy does not require a hearing

in those situations.

26.

We need not resolve the issue, however, because the standard of review applicable

to the dispositive issue in this case, namely, whether the petition is moot, does not depend

on the type of writ review. (See, e.g., State Bd. of Chiropractic Examiners v. Superior

Court (2009) 45 Cal.4th 963, 977 & fn. 3 [declining to decide between §§ 1085 and

1094.5 when unnecessary to the resolution of the appeal]; Gann v. Acosta, supra,

76 Cal.App.5th at p. 353 [appellate review is the same under either form of mandamus

where case turns on statutory interpretation].)15 A determination of whether the petition

is moot raises a purely legal question as the facts on that issue are undisputed. We

exercise independent judgment in that situation, no matter whether the issue arises by

traditional or administrative mandate. (Vichy Springs Resort, Inc. v. City of Ukiah (2024)

101 Cal.App.5th 46, 53 [“ ‘[i]ssues of justiciability, such as mootness, are generally

reviewed de novo’ ”]; K.G. v. Meredith (2012) 204 Cal.App.4th 164, 174 [“[t]rial court

rulings on mootness are reviewed de novo where, as here, they are decided on undisputed

facts”].)

II. The Petition is Moot

We next address whether the petition is moot, as the resolution of this issue is

dispositive of this case. Global contends the trial court erred in denying the petition as

moot because: (1) it may recover the excess proceeds as damages, which are available in

15 We also need not resolve Global’s contention that the County is judicially

estopped from arguing that traditional mandamus rather than administrative mandamus

applies to this proceeding. We note, however, that for judicial estoppel to apply, the

County’s purported inconsistent positions must have been factual in nature and amount to

intentional fraud on the court. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th

825, 832; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.

(2003) 106 Cal.App.4th 1219, 1245.) The determination of whether traditional or

administrative mandamus applies appears to be a legal, not a factual, question, and since

the trial court raised the issue itself, there does not appear to be any fraud on the court.

(Clark v. First Union Securities, Inc. (2007) 153 Cal.App.4th 1595, 1608 [“trial court

may, on its own motion reconsider its interim orders, after providing the parties notice

and the opportunity to be heard”].)

27.

writ proceedings under section 1095; (2) alternatively, the excess proceeds may be

awarded as restitution; (3) even if it may not recover the excess proceeds, the court could

issue a writ directing the County to set aside its denial of Global’s claim; and (4) the

County may not moot the case through its own conduct. Global also contends we should

exercise our discretion to decide the case as it involves an issue of broad public interest

that is likely to recur, and the County is judicially estopped from arguing the petition is

moot. We find no merit to Global’s arguments.

“ ‘A court is tasked with the duty “ ‘to decide actual controversies by a judgment

which can be carried into effect, and not to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which cannot affect the matter in

issue in the case before it.’ ” [Citation.] A case becomes moot when events “ ‘render[] it

impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any

effect[ive] relief.’ ” [Citation.] For relief to be “effective,” two requirements must be

met. First, the plaintiff must complain of an ongoing harm. Second, the harm must be

redressable or capable of being rectified by the outcome the plaintiff seeks.’ ” (In re S.R.

(2025) 18 Cal.5th 1042, 1051; Committee for Sound Water & Land Development v. City

of Seaside (2022) 79 Cal.App.5th 389, 405 [“ ‘[t]he pivotal question in determining if a

case is moot is … whether the court can grant the plaintiff any effectual relief’ ”].)

In its initial petition filed on November 4, 2020, Global sought an order directing

the County to set aside the decision denying Global’s claim and pay Global the excess

proceeds the County was holding. While Global also prayed for an order restraining the

County from giving effect to the finding that Global was not entitled to the excess

proceeds “until further order of this Court and/or to show cause why operation of that

finding should not be stayed pending the judgment in this proceeding,” Global did not

seek a temporary restraining order or preliminary injunction to stay the County’s ability

to disburse the excess proceeds.

28.

At that time, the County was holding $85,426.98 in excess proceeds. The County

disbursed the excess proceeds to Ralph on November 25, 2020, which was more than

90 days after August 4, 2020, when the board approved the resolution authorizing

payment of the excess proceeds to Ralph and rejecting all other claims. Global did not

serve the County with the summons and petition until March 5, 2021, when it mailed the

documents to the County pursuant to the notice and acknowledgement of receipt

provisions of section 415.30. There is no evidence in the record that the County was

apprised of Global’s lawsuit before it distributed the excess proceeds to Ralph. Since the

County is no longer holding the excess proceeds, clearly the court can no longer order the

County to release those proceeds to Global. Thus, the petition is moot to the extent it

seeks such relief.

A. Voluntary Mootness

Global contends the County may not voluntarily moot the petition through its own

conduct citing Minsky v. City of Los Angeles (1974) 11 Cal.3d 113 (Minsky), Holt v.

Kelly (1978) 20 Cal.3d 560 (Holt), and Escamilla v. Department of Corrections &

Rehabilitation (2006) 141 Cal.App.4th 498. In Minsky, our Supreme Court held that “the

government in effect occupies the position of a bailee when it seizes from an arrestee

property that is not shown to be contraband.” (Minsky, at p. 121.)16 The court explained

that the arrestee retained the right to recover the specific property taken, and since such

claims are not claims for money or damages, even if the government wrongfully disposes

of the bailed property, such claims are not subject to the requirements of the Claims Act.

(Minsky, at pp. 121–122.)

In Holt, our Supreme Court clarified that a claim may be made under Minsky

“even though some or all of the property may have been dissipated and [the

16 In Minsky, police officers took $7,720 from an arrestee and allegedly wrongfully

detained and converted the money by transferring it to the policeman’s and fireman’s

pensions fund. (Minsky, supra, 11 Cal.3d at pp. 117–118.)

29.

governmental] respondent may be compelled to respond in damages in lieu of property.”

(Holt, supra, 20 Cal.3d at p. 565, fn. omitted.)17 The appellate court in Escamilla,

following Minsky and Holt, held that a custodial officer who took a prisoner’s personal

property and wrongfully failed to return it to him effectively acted as a bailee of the

personal property and the prisoner could use a petition for writ of mandamus “to recover

that property or its value from that custodial officer.” (Escamilla v. Department of

Corrections & Rehabilitation, supra, 141 Cal.App.4th at p. 510.) Thus, a claim under

these cases is available in “situations in which the defendant [has] a duty to return seized

property, enforceable by way of mandamus.” (City of Stockton v. Superior Court (2007)

42 Cal.4th 730, 743.)

Unlike the plaintiffs in these cases, Global does not seek the return of personal

property from a bailee or any relief that could reasonably be construed as such. Instead,

Global asks the court to issue a writ of mandate directing the County to set aside its

denial of Global’s claim and pay Global the excess proceeds. Global, however, does not

have a recognizable right or interest in the excess proceeds until its claim is approved.

(Hodges, supra, 41 Cal.App.5th at p. 550 [“[p]laintiff had no legal or equitable interest in

the excess proceeds until he established his former interest in the property and the County

approved his claim”].) Thus, unlike the cases Global relies on, the County was not

holding Global’s property as a bailee when it denied Global’s claim, approved Ralph’s

claim, and distributed the proceeds to Ralph.

Global asserts the County was required to withhold the excess proceeds during the

pendency of this litigation. The authorities Global cites, however, do not impose such a

requirement. Revenue and Taxation Code section 4675, subdivision (g) requires “[a]ny

action or proceeding to review the decision of the board of supervisors” to “be

17 In Holt, a county sheriff failed to return a footlocker and its contents to an arrestee

after his release from jail. (Holt, supra, 20 Cal.3d at p. 563.)

30.

commenced within 90 days after the date of that decision of the board of supervisors.”

The claims policy states that “[p]roceeds will be disbursed after the 90 day disputed claim

period.” Neither that section nor the claims policy prohibits the County from disbursing

the excess proceeds once the 90-day period has expired, which is what occurred here.18

While the claims policy’s disputed claims procedure allows the Treasurer-Tax Collector

to request that county counsel initiate an interpleader action when there are multiple

claimants and requires the County to retain the excess proceeds on deposit while the

proceeding is pending, an interpleader action was never initiated.19

Global also contends the County had a statutory duty to disburse the excess

proceeds to the proper claimant in accordance with Revenue and Taxation Code

18 Because the County was not prohibited by statute or its claims policy from

distributing the excess proceeds to Ralph, Global’s assertion that it was not required to

obtain an injunction to stay disbursement of the excess proceeds because the County had

a duty under the statute and its claims policy to refrain from disbursing the proceeds fails.

Rather, Global should have sought a stay of any distribution pending a decision on its

petition. (See Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th

1559, 1581 [the plaintiff partially responsible for its claims becoming moot by failing to

seek a stay of construction of public works project that was completed during the

litigation, which rendered the litigation moot].) While Global complains that it did not

have time to have a preliminary injunction heard before the County disbursed the excess

proceeds, it certainly could have sought a temporary restraining order on an expedited

basis.

Global asserts that it had no reason to suspect the County would disburse the

excess proceeds so quickly, as it did not know if the proceeds had been awarded to

another claimant. But Global was aware that there were other claimants, as shown by its

August 24, 2020 letter to the County. Moreover, Global recognized a stay was necessary

to restrain the County from giving effect to its finding that Global was not entitled to the

excess proceeds, as it prayed for such relief in its original petition. Since it did not seek

an immediate stay, Global cannot complain of the change in circumstances it might have

prevented by seeking such relief. (Wilson & Wilson v. City Council of Redwood City,

supra, 191 Cal.App.4th at p. 1581.)

19 Moreover, as we have stated, there is nothing in the record to indicate that the

County was apprised that Global’s petition had been filed before it disbursed the excess

proceeds.

31.

section 4675, subdivision (e), and its failure to do so does not deprive Global of the right

to seek mandamus. Global compares this case to City of Dinuba v. County of Tulare

(2007) 41 Cal.4th 859 (Dinuba). There, a city and its redevelopment agency sued a

county and associated persons for misallocating property tax revenues to which the

agency was statutorily entitled and sought to recover the misallocated revenue. (Id. at

pp. 862, 863.) Our Supreme Court concluded the defendants were not immune from suit

under the Claims Act because the plaintiffs were not seeking money damages for an

injury as defined under the Claims Act, and “mandamus may issue to compel a county to

comply with its duty to calculate and distribute tax revenue.” (Id. at pp. 863, 870.) In

determining the defendants were not immune from suit, the Supreme Court explained the

plaintiffs were not seeking damages but rather sought to compel the defendants “to

perform their express statutory duty,” and while that “may result in the payment of

money, that is distinct from seeking damages.” (Id. at p. 867.)20 The Supreme Court

rejected the defendants’ complaint that requiring them to correct their mistake and pay

the plaintiffs the “misallocated revenue would ‘inject uncertainty in the public fisc’ and

have a ‘detrimental impact’ ” because courts “cannot refuse to enforce a statutory duty

simply because of an alleged hardship it would pose to a county.” (Id. at p. 869.)21

20 The Supreme Court cited examples of damages that would likely be precluded

such as “compensatory damages for a downgraded bond rating or increased interest rates

as a result of [the] defendants’ failure to disburse the funds to which [the] plaintiffs were

entitled.” (Dinuba, supra, 41 Cal.4th at pp. 867–868.)

21 The Supreme Court also noted that several provisions of the Revenue and

Taxation Code appeared to limit any hardship to the defendants, appropriate defenses

were available to the defendants such as laches and unclean hands, the taxing entities that

received misallocated revenue also were named as defendants and continued to be parties

to the action so the misallocated revenue could be recovered from them, and the county

may correct the tax rolls that resulted in overpayments and explore offsetting future

payments to recover any amounts owed the plaintiffs. (Dinuba, supra, 41 Cal.4th at

p. 869.)

32.

Global contends that, as in Dinuba, mandamus is appropriate to compel the

County to comply with its statutory duty to disburse the excess proceeds to Global, and it

is immaterial that the County’s decision to disburse the proceeds to Ralph would impose

a hardship on the County. Therefore, Global reasons, payment of the excess proceeds

would result from the County’s statutory duty to approve Global’s claim and disburse the

proceeds to it as the rightful claimant. The reasoning in Dinuba, however, does not apply

here because the approval of a particular party of interest’s claim for excess proceeds and

disbursement of those proceeds to that party is not a statutory duty. While the County

has a duty to determine if any party of interest has claimed the excess proceeds and

distribute the proceeds to the parties of interest in the specified order of priority, the

County is not statutorily obligated to approve and pay any particular claim. (See § 4675,

subd. (e).) This is not like Dinuba, where the defendants failed to allocate the tax

revenues as set forth by statute, as no statute tells the county how to resolve a claim for

excess proceeds. Instead, each county establishes the “information and proof deemed

necessary by the board of supervisors to establish the claimant’s rights to all or any

portion of the excess proceeds.” (§ 4675, subd. (d).) Moreover, Global has not identified

a recourse available to the County to recover the excess proceeds that were paid to Ralph,

who is no longer a defendant in this action.

B. Treating Recovery of the Excess Proceeds as Damages

Global asserts that even if the court cannot order payment of the excess proceeds,

it can order payment of an amount equivalent to the excess proceeds as damages. Global

points to the allegations in the third amended petition, which requests an order directing

the County to set aside the decision denying Global’s claim and pay Global the excess

proceeds “as damages.”

Damages are available to a successful applicant in a mandamus action.

Section 1095 provides that, in a writ of mandamus action, “[i]f judgment be given for the

applicant, the applicant may recover the damages which the applicant has sustained, as

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found by the jury, or as may be determined by the court or referee, upon a reference to be

ordered, together with costs; and a peremptory mandate must also be awarded without

delay.” (§ 1095.) In other words, “[i]f the judgment is otherwise correct, there can be no

doubt of the propriety of thus awarding a money judgment in a mandamus proceeding

where other grounds for the issuance of a writ of mandate exist.” (Adams v. Wolff (1948)

84 Cal.App.2d 435, 439.)

Our Supreme Court has held that “mandamus may be brought to start the chain of

action designed to compel a ministerial duty by a public officer, even if the ultimate goal

may be recovery of a sum of money,” and noted it is “clear that mandamus will lie where

the recovery of money is merely ancillary to an underlying proceeding which seeks

performance of a ministerial duty.” (Holt, supra, 20 Cal.3d at p. 565, fn. 5.) Thus,

money damages may be awarded in a petition for writ of mandate only if other grounds

(other than money damages) warrant issuance of the writ and the recovery of money

damages is ancillary to the writ.

Here, Global contends the court could issue a writ directing the County to set aside

its decision to deny Global’s claim and make an ancillary award of damages equivalent to

the amount of the excess proceeds. Global, however, is not seeking to enforce a

ministerial duty that is independent of the damages it seeks. Rather, the duty it seeks to

enforce, namely, approval of its claim for excess proceeds, would accomplish nothing

unless the County still possessed the excess proceeds.22

The employment cases Global relies on are both instructive and distinguishable.

In Poschman v. Dumke (1973) 31 Cal.App.3d 932, disapproved of on other grounds in

Armistead v. State Personnel Bd. (1978) 22 Cal.3d 198, 204, footnote 3, the appellate

court found that an action by a state college professor seeking damages and other relief

22 For this reason, Global’s assertion that a writ should issue to set aside the

County’s decision denying Global’s claim even if the county paid the excess proceeds to

another claimant fails. Such a writ would not provide Global with any effective relief.

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for the wrongful denial of tenure was not rendered moot by the grant of tenure almost two

years after it should have been granted, because the professor was still entitled to

additional salary, service benefits, and consideration for promotion that were dependent

on the length of tenure. (Poschman, at pp. 935, 943–944.) Thus, the appellate court

reversed the order sustaining the demurrer to the professor’s petition for writ of

administrative mandamus and sent the matter back to the trial court not only to consider

the monetary issue of lost salary and any special damages, but also to restore any lost

“service benefits” the professor could have accrued. (Id. at pp. 935–936, 943–944.)

In Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, a

university professor filed a petition for writ of mandate seeking to set aside the

chancellor’s decision to uphold a faculty vote that terminated programs which resulted in

the elimination of the professor’s employment. (Id. at p. 1088.) After the trial court

directed the chancellor to reconsider the decision, the chancellor upheld the faculty’s

decision but granted the professor his full salary for one academic year as he received

inadequate notice of his termination. (Id. at p. 1089.) The trial court granted the

professor’s second petition for writ of mandate, ordering the university to pay the

professor’s salary and benefits for the subsequent academic year as the eliminated

programs would have continued through the end of that year. (Id. at pp. 1089, 1099–

1100.) Noting that under section 1095 “a judgment granting a writ of mandamus may

allow the petitioner to ‘recover the damages which [he] has sustained,’ ” the appellate

court affirmed the damage award. (Apte, at pp. 1099–1100.)

In each of these cases, the award of damages was subject to relief granted by the

writ of mandate, namely, the grant of tenure or reinstatement of employment, thus

rendering additional recovery for monetary damages proper under section 1095. In

contrast here, any award of damages in the amount of excess proceeds is not subject to

the relief that would be granted by the writ of mandate, namely, ordering the County to

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set aside its denial of Global’s claim, as such an award of damages is not ancillary to the

approval of Global’s claim but rather it is the goal of Global’s petition.23

C. Treating the Excess Proceeds as Restitution

Global alternatively contends that it may recover the amount of excess proceeds as

restitution because it has a beneficial right to the excess proceeds as the claimant with

priority and the County was unjustly enriched at Global’s expense when it refused to

disburse the proceeds to Global. (See Unilogic v. Burroughs Corp. (1992)

10 Cal.App.4th 612, 627–628 [a person unjustly enriched at another’s expense is

required to make restitution to the other].)

In its purest sense, “restitution” denotes the return or restoration of a specific

thing to its rightful owner. (Gardiner Solder Co. v. SupAlloy Corp., Inc. (1991)

232 Cal.App.3d 1537, 1540; Dinosaur Development, Inc. v. White (1989)

216 Cal.App.3d 1310, 1315.) In modern legal usage, however, the concept has

frequently been extended to include “ ‘ “compensation, reimbursement, indemnification,

or reparation for benefits derived from, or for loss or injury caused to, another.” ’ ”

(Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 198, quoting Dinosaur Development, at

p. 1315.) Whether applied narrowly or expansively, the remedy seeks to restore the

status quo ante by awarding to the plaintiff an amount equal to the value of whatever he

or she parted with and thereby restore the plaintiff to the position he or she had been in

before the wrongful conduct occurred. (Dunkin, at p. 198; People v. Martinson (1986)

188 Cal.App.3d 894, 900.)

Restitution is not available here because Global did not have a beneficial interest

in the excess proceeds until it established its interest in the property and the County

approved its claim. (Hodges, supra, 41 Cal.App.5th at p. 550.) Therefore, Global did not

23 Since Global is not entitled to recover the excess proceeds as damages, we need

not address the County’s argument that Global was required to comply with the Claims

Act.

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part with anything of value. Moreover, the County did not receive a benefit, as it did not

keep the excess proceeds but rather distributed the proceeds to the person it determined

was the rightful claimant. Accordingly, ordering the County to pay Global an amount

equivalent to the excess proceeds would not restore the status quo ante.

D. Judicial Estoppel

Global contends the County is judicially estopped from contending that the

petition is moot because the trial court dismissed the declaratory relief cause of action

based on the County’s argument that declaratory relief is not an alternative to an

administrative mandamus claim. Global reasons that since the County disbursed the

excess proceeds to Ralph long before the trial court dismissed the declaratory relief

claim, the court implicitly accepted that Global’s mandamus claim was not moot,

otherwise it would not have dismissed the declaratory relief claim. Global complains that

the court did not provide an opportunity to reinstate the declaratory relief claim when it

found the mandamus action moot.

These arguments fail for several reasons. First, it does not appear that Global

asked the trial court to reinstate the declaratory relief claim should it find the mandamus

claim moot. (See Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489 [“[i]t

is well settled that the failure to raise an issue in the trial court typically forfeits on appeal

any claim of error based on that issue”].) In addition, Global does not make any

meaningful argument supported by citation to legal authorities that the trial court’s

decision to sustain the demurrer to the declaratory relief claim was erroneous. (See Yield

Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557 [“an

appellant must do more than assert error and leave it to the appellate court to search the

record and the law books to test his claim”; “[t]he appellant must present an adequate

argument including citations to supporting authorities.”].)

Finally, judicial estoppel does not apply to a legal argument, such as whether

Global could maintain a declaratory relief claim. (ABF Capital Corp. v. Berglass, supra,

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130 Cal.App.4th at p. 832 [judicial estoppel is invoked “to prevent judicial fraud from a

litigant’s deceitful assertion of a position completely inconsistent with one previously

asserted”; “[t]he inconsistent position generally must be factual in nature”].) To the

contrary, “[l]egal arguments can be considered at any stage in a case … that involves

purely legal issues and undisputed facts.” (Field v. Bowen (2011) 199 Cal.App.4th 346,

355, fn. 3.)

E. The Public Interest Exception to Mootness

Finally, Global asserts that even if the petition is technically moot, we should

exercise our discretion to reach the petition’s merits under the public interest exception to

mootness. This exception applies when there is an “important question affecting the

public interest that is capable of repetition, yet evading review.” (California Water

Curtailment Cases (2022) 83 Cal.App.5th 164, 181–182.) Global asserts we should

exercise our discretion to resolve the issues raised by the petition because the County’s

misconduct threatens the public interest by treating claimants inequitably and denying

them due process, and this conduct threatens to be repeated because the County routinely

processes claims for excess tax proceeds.

We decline to exercise our discretion to resolve the moot questions presented here.

In our view, any resolution would be unlikely to provide guidance for future disputes, as

the processing of claims is inherently driven by the facts of each claim. (See MHC

Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215

[declining to apply public interest exception when the appellate issues are essentially

factual in nature and therefore require case-by-case resolution].) Moreover, a challenge

to the County’s processing of future claims for excess proceeds is not likely to evade

review as there are means for raising such a challenge before the County distributes the

proceeds. The sole reason this case evaded review was Global’s failure to take steps to

prevent the County from disbursing the excess proceeds to another claimant.

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In sum, the petition is moot because Global cannot be provided effective relief as

the County distributed the excess proceeds to another claimant. Since Global has not

shown that the trial court erred in dismissing the petition, we affirm the judgment.24

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondents.

DE SANTOS, J.

WE CONCUR:

PEÑA, Acting P. J.

HARRELL, J.

24 Since we agree with the trial court that the petition must be dismissed as moot, we

do not reach Global’s arguments on the merit of the petition.

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